TX Poss'n of Controlled Substance With Intent to Offer to Sell Not a §2L1.2 "Drug Trafficking Offense" or a §4B1.2(b) "Controlled Substance Offense"

Recall that the Fifth Circuit recently held in United States v. Gonzales that the Texas offense of delivery of a controlled substance is not categorically a "drug trafficking offense" for purposes of U.S.S.G. §2L1.2(b)(1)(A) & (B). That's because the definition of "deliver" applicable to the Texas drug laws includes mere offers to sell drugs, and offers to sell fall outside the §2L1.2 definition of "drug trafficking." "Okay," you say, "instead of an actual offer to sell, what about possession with intent to offer to sell? Is that 'drug trafficking?'" Ford holds it's not.

The question in Ford is actually whether the Texas offense is a "controlled substance offense" under U.S.S.G. §4B1.2(b), rather than a "drug trafficking offense" under §2L1.2. But since the §4B1.2(b) CSO definition is virtually identical to the DTO definition found in Application Note 1(B)(iv) of §2L1.2, the court acknowledges that cases holding that offers to sell don't constitute §2L1.2 DTO's are equally applicable to the §4B1.2(b) CSO question. (That seemingly minor point is important because it means that you have to be aware of this issue not only when it comes to illegal reentry offense level calculations, but also anywhere that the §4B1.2(b) CSO definition comes into play (including §2K2.1 base offense level determinations, the career offender and armed career criminal guidelines, and possibly others).)

The court went on to conclude that if an offer to sell is not a DTO or a CSO (and Garza-Lopez and Gonzales say it's not), then it logically follows that possession with intent to offer to sell isn't either. The possession doesn't affect the analysis: "[W]hether or not possession is implicated, the operative element of 'intent to deliver,' per Gonzales, is still broader than intents found in the 'controlled substance offense' definition as 'deliver' includes an offer to [sell]. Since this operative intent element is broader, the whole conviction, regardless of the possession element, is broader than the 'controlled substance offense' definition."

Let's step into the way-back machine for a trip to July of last year, when the question on everyone's mind was, "Is suppression of evidence still a remedy for knock-and-announce violations in federal court?" The question arose in the wake of the Supreme Court's decision in Hudson v. Michigan, which held that exclusion isn't required for the Fourth Amendment violation. At the time, law professor and Volokh Conspirator Orin Kerr opined that there's still a statutory exclusionary remedy available in federal court for violations 18 U.S.C. § 3109, the federal knock-and-announce statute. Professor Kerr noted that "[i]t has generally been understood that violations of . . . § 3109 can lead to suppression in federal court as a matter of statutory law[,]" based on the Supreme Court's decisions in Miller v. United States and Sabbath v. United States, and suggested that because Hudson dealt only with the Fourth Amendment's reasonableness requirement, it left Miller and Sabbath intact with respect to the availability of a statutory suppression remedy.

Not according to Caldwell. It followed the lead of the First, Ninth, and District of Columbia Circuits, which have held that Hudson's reasoning applies with equal force to statutory knock-and-announce violations. The court also rejected the argument that Miller and Sabbath require suppression as a statutory remedy, holding that neither case "analyze[d] the precise question Hudson squarely addressed: the remedy for a knock-and-announce violation. Rather, both focused on whether a knock-and-announce violation had occurred."

You might want to consider preserving this issue, should it arise in any of your cases. There's no circuit split yet, but it sounds like an issue that may merit Supreme Court review at some point.

Fazande pled guilty to conspiracy to possess 50+ grams of meth/500+ grams of a meth mixture with intent to distribute. The district court applied the enhanced 20-year mandatory minimum under 21 U.S.C. § 841(b)(1)(A), based on Fazande's 1995 Texas deferred adjudication for possession of less than one gram of cocaine.

Fazande appealed, arguing that the deferred adjudication was not a "final" conviction, as required by the terms of the enhancement provision. He acknowledged that the Fifth Circuit has held otherwise in United States v. Cisneros, but argued that Cisneros should be overturned because it violates the Full Faith and Credit Act (28 U.S.C. § 1738), which provides that state judicial proceedings "shall have the same full faith and credit within every court of the United States . . . as they have by law or usage in the court of such State, Territory, or Possession from which they are taken."

An interesting argument. Unfortunately, the court rejects it with little discussion:

Although this court does not appear to have previously addressed Mr. Fazande’s full faith and credit argument, the argument is meritless. The Full Faith and Credit Act obligates federal courts to give effect to the judgments of state courts, but the principles that underlie the Full Faith and Credit Act are simply not implicated when a federal court endeavors to determine how a particular state criminal proceeding is to be treated, as a matter of federal law, for the purpose of sentencing the defendant for a distinct and unrelated federal crime. A number of other circuits have reached this same conclusion, and we are aware of no decisions to the contrary. [string cite and parentheticals] Accordingly, we reject the argument that the Full Faith and Credit Act prohibited the district court from considering his Texas deferred adjudication for sentencing purposes.

As you've no doubt heard by now, the Supreme Court recently decided James v. United States, a case involving the so-called residual clause of the Armed Career Criminal Act's "violent felony" definition. The clause follows a list of enumerated violent felonies, and includes offenses that "otherwise involve[] conduct that presents a serious potential risk of physical injury to another." James held that the Florida offense of attempted burglary qualifies as a violent felony under the clause. But that's about all the opinion does. As three dissenting justices in James point out (Scalia, Stevens, and Ginsburg), the majority's reasoning is so narrow that it provides virtually no guidance for lower courts, or defendants, trying to figure out whether other offenses fit within the residual clause:

[F]or what is probably the vast majority of cases, today's opinion provides no guidance whatever, leaving the lower courts to their own devices in deciding, crime-by-crime, which conviction "involves conduct that presents a serious potential risk of physical injury to another." It will take decades, and dozens of grants of certiorari, to allocate all the Nation's crimes to one or the other side of this entirely reasonable and entirely indeterminate line.

Nevertheless, the panel in Davis steps into the breach and finds sufficient guidance in James to hold that robbery under Texas Penal Code § 29.02 qualifies as a violent felony under the residual clause. The court began with what it understood to be "[t]he test articulated by James for determining whether an offense falls within the residual clause[:] 'whether the conduct encompassed by the elements of the offense, in the ordinary case, presents a serious potential risk of injury to another.'" (Of course, the problem with James' test is that it does nothing more than restate the statutory language; it tells you nothing about how to make that determination.) After reviewing the way James tackled the issue, and discussing the elements of Texas robbery, the court reached its conclusion:

To commit robbery, an individual must interact with the victim in order to cause bodily injury or place the victim in fear of it. See TEX. PEN. CODE ANN. § 29.02. Such interaction to take another’s property creates a serious potential risk of a violent confrontation between the robber and the victim. This in turn, in the ordinary case, presents a serious potential risk of physical injury to another.

The court rejected Davis' argument that Texas robbery can be committed without a weapon and that unarmed robbery doesn't pose a serious enough risk of injury to qualify under the residual clause: "Even when the robber has no weapon, the very real possibility of confrontation between the robber and the victim creates a serious potential risk of injury."

Like James, Davis fails to provide much guidance on how to apply the residual clause to other offenses, except perhaps those that necessarily involve the risk of physical confrontation. The good news is that four Supreme Court justices think this approach to applying the ACCA is unconstitutional (three because it makes the ACCA unconstitutionally vague, and one because the judicial fact-finding violates Apprendi), so the cert petition practically writes itself. The bad news is that four is less than five.

Friday, May 18, 2007

Jenkins pled guilty to possession of 100+ kilos of marijuana with intent to distribute. The Government also sought to invoke a 10-year mandatory minimum by filing an enhancement information pursuant to 21 U.S.C. § 851, which alleged three prior felony drug convictions. Jenkins objected to the enhanced penalty at sentencing on the ground that "'[i]t was $10 worth of drugs on two occasions — two separate felonies, and those were the two that were used to enhance me, 10 to life.'" The district court overruled the objection, and sentenced him to 120 months. His guideline range would otherwise have been 92 to 115 months.

On appeal, Jenkins raised two arguments against the application of the mandatory minimum. First, he argued that the district court failed to follow the procedures prescribed by § 851(b). The court of appeals reviewed for plain error. It agreed that there was error, but that it didn't affect Jenkins' substantial rights because § 851 prohibits a defendant from challenging convictions that occurred more than five years before the enhancement was filed and two of Jenkins' three priors were more than five years old. The court also added that "Jenkins admitted at sentencing that his prior convictions were felonies and never revealed what challenges he was prepared to make to his prior convictions."

Jenkins' second argument was that the "the district court violated Shepard v. United States by relying on the PSR’s characterization of his prior offenses for enhancement purposes." The court of appeals held that regardless of the fact that "the record is silent regarding whether the court examined any supporting documents[,]" Jenkins' admission that the priors were felonies "was sufficient for the district court to conclude that Jenkins’s prior convictions were felonies without regard to the categorical approach for sentence enhancements." Additionally, Jenkins did not argue on appeal that the priors weren't felonies.

(That point about Jenkins' admissions sounds wrong. I don't think a defendant's statements about legal questions, such as whether a particular offense was a felony or not, constitute "admissions" for purposes of Shepard. Nevertheless, this holding is yet another reason for defendants to be extra careful about what they say. This isn't the first time that the Fifth Circuit has treated some statement in the record as an admission on a point that the statement doesn't appear to have been addressing in the first place. See, e.g.,here and here. Plain error review doesn't help matters, either.)

Jenkins also challenged the district court's refusal to award him a minor role adjustment, arguing that he was just a courier. The court of appeals rejected this argument, as well, pointing to case law that says that couriers aren't necessarily minimal or minor participants. I don't know why the court addressed this issue, because his guideline range was already below the 10-year mandatory minimum even without the minor role adjustment.

Thursday, May 17, 2007

Post-Verdict Judgment of Acquittal Reversed

Let's say the Government charges you with being a felon in possession of a firearm, alleges that you were previously convicted of a particular felony offense, introduces documents at trial which show that you were convicted of that offense, and the jury finds you guilty. But in fact, you were never convicted of the felony that the Government alleged and proved. Instead, you were convicted of some other felony offense. Are you entitled to a judgment of acquittal? Apparently not, at least not in the circumstances present in Hope.

Hope was charged with being a felon in possession of a firearm. The predicate felony alleged in the indictment was an aggravated assault conviction from Mississippi. At trial, the Government introduced a certified state court judgment showing that Hope had been convicted of that offense. Hope did not object. After being found guilty, new counsel was appointed for Hope. His new attorney reviewed the state court transcript from his prior conviction, and discovered that the aggravated assault charge had been dismissed and that Hope had actually pled guilty to strong-arm robbery. Hope therefore filed a motion for new trial, which the district court construed as a renewed Rule 29 motion for judgment of acquittal. The district court granted the motion on the ground that Hope was not in fact convicted of the prior felony alleged in the indictment and proven at trial.

The court of appeals reversed the judgment of acquittal, although it's hard to tell exactly why. So rather than attempt to summarize the court's reasoning, I'll just quote it in full:

Hope’s argument for acquittal was that, based on the transcript of the Mississippi proceeding, the evidence was insufficient to convict him of being a felon in possession. Hope argues that “no evidence of a valid conviction was ever presented at trial,” because the indictment charged Hope with having been convicted of aggravated assault, which the transcript proved was not true. Thus, Hope says, neither the grand nor petit jury has ever been presented with evidence that he had a valid prior felony conviction, and consequently because the evidence introduced at trial does not support a verdict of guilty, the district court did not err in granting a judgment of acquittal under Rule 29.

We cannot agree. First, the indictment alleged that Hope had been convicted of a qualifying felony and it listed the particular cause number and date of his conviction, none of which is disputed. There is no variance between the evidence introduced and the crime charged in the indictment. The only variance exists between the official record of the state trial and the state transcript introduced in federal post-trial proceedings. Hope makes no argument that he was uncertain to which felony conviction the indictment referred; although at some point in the trial he apparently said that he did not plead guilty to aggravated assault, he never denied that he had pled guilty to a felony in the same case and case number alleged in the indictment. Second, the evidence that the government introduced at trial, namely the official Mississippi judgment order, supported the indictment in every particular. Hope’s trial counsel did not object to the introduction of this evidence nor did he otherwise contest the fact that Hope had been convicted of a qualifying felony. Finally, it is clear that, irrespective of whether the crime was denominated as aggravated assault or strong-arm robbery, Hope was in fact convicted of a qualifying felony --specifically in the same case and case number that was reflected in both the certified judgment and the indictment. As noted, the record further shows that Hope was aware that this conviction made it a federal crime for him to possess a firearm in interstate commerce. He signed a form to this effect on August 28, 2000, four days after his guilty plea in state court.

. . .

We thus conclude: The only question in reviewing the district court’s grant of the Rule 29 motion is whether the evidence introduced at trial and upon which the jury based its verdict is sufficient to support the crime charged in the indictment. A federal crime was correctly charged in the indictment; the government proved the crime charged with competent evidence, that is, an unobjected-to, certified state court judgment. Such evidence is sufficient to support the crime charged in the indictment and the guilty verdict the jury returned based on that evidence. Thus we hold that the district court erred in entering a judgment of acquittal in response to Hope’s oral Rule 29 motion. If Hope is entitled to relief, he must pursue a different procedural course in order to achieve it. For the foregoing reasons, the district court’s judgment is REVERSED, Hope’s conviction is hereby REINSTATED and the case is REMANDED for sentencing.

I invite any readers who can decipher this holding to weigh in with a comment.

Prior Felony Conviction for Burglary of Vehicle Qualified as § 922(g) Predicate, Even Though Offense Is Now Only a Misdemeanor

In 1985, Schmidt was convicted of burglary of a vehicle in Texas state court. The offense was a third degree felony at the time, but in 1993 the Texas legislature reduced it to a Class A misdemeanor. At some point after that Schmidt was charged with and convicted of being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1), with the vehicle burglary conviction serving as the predicate felony. Schmidt raised three challenges to his FIP conviction, all of which the court rejected.

First, "Schmidt argue[d] that because, at the time of the events giving rise to his § 922 offense, burglary of a vehicle was not punishable by a term of more than one year, it cannot properly be a predicate offense." The court initially acknowledged that "[t]his case turns on what point in time is used to measure the incarceration term of the predicate offense." (Schmidt obviously argued that it's at the time of the firearm possession giving rise to the alleged § 922 offense, while the Government argued that it's at the time of the predicate felony.) But then the court says it doesn't need to resolve that question because of a non-retroactivity clause in the legislation that reduced burglary of a vehicle from a felony to a midemeanor. That clause provides that the misdemeanor classification only applies if the offense is committed on or after September 1, 1994, which was the effective date of the amendment. So, according to the court, it doesn't matter whether you use the date of the prior offense or the date of the alleged § 922(g)(1) offense, because Schmidt's prior offense would have been punishable as a felony on either date since he committed the offense in 1985.

Schimdt's second argument was that "the plain language of [§922(g)(1)] requires the government to prove that he knew not only that he was possessing a firearm, but also that he was a felon." The Fifth Circuit has rejected this argument, both pre- and post-Staples, and rejects it again here.

Finally, "Schmidt urge[d, on the basis of Lopez, Jones, and Morrison,] that § 922(g)(1) is unconstitutional on its face, and as applied to him, because it does not require a 'substantial' effect on interstate commerce." This one was also foreclosed by Fifth Circuit precedent.

"Another Offense" Cross-Reference In U.S.S.G. §2K1.3(c)(1) Can Apply Even If Conviction Results from Sting Operation

Rankin involves the cross-reference found in U.S.S.G. §2K1.3(c)(1)(A), the guideline applicable to transportation, possession of, and other acts pertaining to explosives. At the risk of oversimplification, if the explosives offense was related to some other offense, then the cross-reference essentially directs the court to sentence the defendant under the guideline for that other offense if that would result in a higher offense level.

In this case, an undercover ATF agent solicited Rankin to build a briefcase bomb. Rankin told the agent that the bomb would "take care of" someone if that's what she was looking for. When the agent picked up the bomb from Rankin, she mentioned that she wanted to use it to kill her ex-husband. Rankin assured her it would, and offered to give her another bomb for free if the first one didn't work.

At sentencing, the Government urged the court to apply the attempted murder guideline (§2A1.2) via §2K1.3(c)(1)(A). The district court declined to do so, following the probation officer's recommendation that the cross-reference does not apply in the case of a sting operation. The Government appealed.

The court of appeals reversed. It held that "[t]he district court legally erred in determining that factual impossibility rendered the application of the guideline inappropriate . . . [because] '[f]actual impossiblity is not a defense to a charge of attempt.'" The district court relied on that legal error in calculating Rankin's guidelines, so the court of appeals vacated the sentence and remanded for resentencing. Although it's a little unclear from the opinion, the court doesn't appear to be saying that the cross-reference actually should have been applied. Instead, the remand appears to call for the district court to consider whether the facts of the case support application of the attempted murder guideline.

The Fourth Amendment may be in pretty sad shape, but Martinez proves that rumors of its demise have been at least somewhat exaggerated. Here the court holds that an anonymous tip did not create the reasonable suspicion necessary to seize Martinez, and reverses the district court's denial of Martinez's motion to suppress guns obtained as a result of his seizure. The opinion also provides a useful reminder of just who has the burden on a motion to suppress arising out of a warrantless seizure (hint: it's on the Government).

The court's recitation of the relevant facts is nice and succinct, so let's go with that:

Law enforcement in Houston received a tip that a man named “Angel” might have been a witness to a quadruple homicide, might be in possession of the weapons used in the homicide, and might be planning to flee to Mexico with those weapons. The tipster stated that Angel was staying with his girlfriend, and provided her address in Pasadena, Texas. The day after receiving the tip, the police did not seek a warrant. Rather, six officers set up surveillance outside the residence. Three or four hours later, a car drove away from the residence. The officers stopped the car and interviewed the driver, a man named Bernardo, who confirmed that a man named Angel was in the residence. At the request of the police, Bernardo agreed to call the residence and ask Angel to come to the location of the stop to retrieve his car. Approximately twenty minutes later, Juan Angel Martinez (“Martinez”) and his girlfriend, Georgina Amatt (“Amatt”), left the house, totally unaware that they were under surveillance. The police stopped them a few blocks away. They immediately placed Martinez in the back of a police cruiser, where he consented to being transported to the police station for questioning. Meanwhile, a Spanish-speaking officer obtained consent from Amatt to search her residence, which resulted in thediscovery of three firearms.

As it turned out, "neither Martinez nor the discovered weapons had anything to do with the quadruple homicide." But Martinez was an illegal alien and a felon, so he wound up under the § 922 gun. The district court denied Martinez's motion to suppress the guns, and found him guilty at a bench trial of being a felon in possession of firearms.

Martinez appealed, arguing that his seizure was unreasonable because the tip was insufficient to create a reasonable suspicion that he was engaged in criminal activity, and that the guns should be suppressed as a fruit of that unreasonable seizure.

The court of appeals agreed, addressing three issues in the process. First, the court rejected the Government's contention that Martinez failed to raise this precise claim in the district court and that the court should therefore review for plain error. The Government argued that Martinez wasn't specific enough about the basis for his motion because he didn't argue that it was the tip that failed to give rise to a reasonable suspicion of criminal activity, and that if Martinez had been more specific on that point then the Government would have called more witnesses to shore up the reliability of the tip or the tipster. (Astonishingly, none of the witnesses called by the Government had any first-hand knowledge of either one.) The court responded by pointing out that "the burden rests with the government to demonstrate reasonable suspicion, and where that suspicion hinges on an informant’s tip, part of the government’s burden is to address the reliability of that information." Since Martinez clearly argued that there was no reasonable suspicion for the seizure, both the Government and the district court were well aware of the grounds for his motion. Having adequately preserved the issue, Martinez was entitled to de novo review on appeal.

Second, the court of appeals agreed with Martinez that the tip failed to give rise to a reasonable suspicion of criminal activity. Since the Government "never introduced any evidence about the informant whatsoever and made no effort to illustrate his or her reliability in the district court[,]" the court treated it as an anonymous tip. That meant that "the government had to establish reasonable suspicion based on some or all of the other [relevant] factors . . . . : the specificity of the information provided, the extent to which the information is corroborated by officers in the field, and whether that information concerns recent activity or has instead gone stale." Here, the only thing the officers confirmed was that a man named Angel lived at the residence they had staked out; there was no absolutely no corroboration whatsoever of the allegation of criminal activity. Absent that, there was no reasonable suspicion for the stop.

Third, the court held that the guns were a fruit of the illegal seizure. Addressing the relevant factors from United States v. Chavez-Villareal, the court easily concluded that there was no break in the causal chain from the illegal stop to Amatt's consent to the guns.

Exclusion Not An Available Remedy for Violation of Pen-Trap Statute, and Just How Rebuttable Is the Presumption of Reasonableness?

This case involves a crack cocaine conspiracy. Okay, there's a lot more to it than that, but the details aren't all that important to the two issues I'll highlight here: 1) the court holds that there's no exclusionary remedy for violations of the federal pen-trap statute, and 2) the court rejects all three defendants' reasonableness challenges to their sentences in a way that makes the presumption of reasonableness look all but conclusive.

No Exclusion for Violations of Pen-Trap StatuteOne of the defendants sought to suppress evidence that he claimed was obtained in violation of the pen-trap statute, 18 U.S.C. § 3122. (The opinion doesn't say what the claimed violation was.) The district court declined to hold a hearing to determine whether the Government violated the statute, because it concluded that there's no suppression remedy available for violations of § 3122.

The court of appeals agreed, holding that Congress did not intend to provide for suppression as a remedy. Unlike the wire-tap statute, which "specifically provides for an exclusionary remedy when the statutory requirements are not met[,]" § 3122 provides only "for fines and imprisonment for knowing violations[,]" This was a statutory rather than a Constitutional question because the Supreme Court has held that "the non-content surveillance of a pen register is an insufficient invasion of privacy to implicate the Fourth Amendment."

A Very Robust PresumptionAll three defendants in the case argued that their sentences were unreasonable. The court disagreed, with a brief analysis that doesn't even mention the rebuttable nature of the presumption of reasonableness. Here's what the court had to say:

Felicia Smith’s challenge is the most compelling, but fails. She was sentenced to 292 months, the bottom of the advisory guideline range. As she notes, her role in the offense, largely chauffeuring and buying baking soda, was significantly less than that of her co-defendants. At sentencing, her counsel pointed out that Smith was “just a kid,” without so much as a traffic ticket in her past, who refused repeated plea offers to avoid hurting the father of her three-year-old child.

The district court considered these arguments and was unmoved. The court ruled that “the guidelines adequately take into account the seriousness of the offense for which she was found guilty, which is also one of the concerns under Section 3553(a).” The district court properly calculated Smith’s guideline range, and her resulting sentence is accordingly entitled to a presumption of reasonableness.

Eric German and Richard Jackson also urge this court to reduce their sentences on the grounds that a lesser sentence would better achieve the objectives listed in 3553(a). Richard Jackson was sentenced to 360 months. Eric German was sentence to life. Each argues that his prior conviction is either too minor or too stale to be included in his criminal history score. The district court considered and rejected Jackson’s argument and German’s argument wasn’t raised below. Both within-guideline sentences are entitled to a presumption of reasonableness.

This is certainly consistent with the pattern of reasonableness review that's developed in our circuit (and some others), but it sounds inconsistent with the Fifth Circuit's prior statement that within-guideline sentences are not per se reasonable. But as always, we'll see what the Supreme Court has to say about these matters in Rita and Claiborne, which aren't more than a month-and-a-half away at this point.